United States District Court, W.D. Washington, Tacoma
DEBBRA L. SANDERS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see Dkt. Nos. 13, 15, 16).
After considering and reviewing the record, the Court finds that the ALJ erred when he relied on the testimony of a vocational expert to find that plaintiff could work as an agricultural produce sorter, small electronics assembler and copy machine operator where the Dictionary of Occupational Titles' classification of the manipulative requirements of these occupations exceeded plaintiff's functional capacity and the vocational expert offered no explanation for this discrepancy.
Plaintiff, DEBBRA L. SANDERS, was born in 1960 and was 45 years old on the alleged date of disability onset of October 15, 2006 and 51 years old on the date of the ALJ's decision ( see Tr. 16, 191, 193). At the administrative hearing, plaintiff amended her alleged date of disability onset to October 10, 2010 (Tr. 62-63). Plaintiff obtained her GED and attended college for two years, but did not earn a degree (Tr. 67-68). Plaintiff served eight years in the Air Force and was an avionics communications specialist (Tr. 69). Plaintiff has past work experience as a banquet manager for a hotel, bartender and food server (Tr. 72).
At the time of the hearing, plaintiff was single and living in a government subsidized apartment (Tr. 66, 71).
Plaintiff has at least the severe impairments of "cerebrovascular accident (CVA) with stent placement; superficial femoral atherosclerosis; obesity; methamphetamine abuse in remission; and organic mental disorder (20 CFR 404.1520(c) and 416.920(c))" (Tr. 21).
In 2006 and 2008, plaintiff previously filed claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). These claims were denied by an ALJ on June 24, 2010 (Tr. 100-120). This Court affirmed the ALJ's denial of benefits on February 16, 2012 (Tr. 35-55).
On July 15, 2010, plaintiff protectively filed applications for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act ( see Tr. 19, 191-92, 193-99). These applications were denied initially and following reconsideration (Tr. 121-24). Plaintiff's requested hearing was held before Administrative Law Judge Rudy (Rudolph) M. Murgo ("the ALJ") on June 8, 2012 ( see Tr. 59-99). On July 5, 2012, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr.16-34).
On January 25, 2013, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-4). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in March 2013 ( see Dkt. Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on August 6, 2013 ( see Dkt. Nos. 9, 10).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) whether the ALJ erred in finding plaintiff capable of performing other work that exists in the national economy; (2) whether the Medical-Vocational Guidelines direct a finding of disability; and (3) whether the ALJ erred in failing to follow the requirements of Social Security Rulings ("SSR") 83-12 and 96-9p ( see Dkt. No. 14, pp. 5-6).
STANDARD OF REVIEW
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity ...